It’s good to be a senior federal judge. You’ve got nobody to impress and no concern that anything you might do is going to impact your elevation to the Supreme Court. Your climb to greatness has come to an end, and it’s now only about doing the right things. John Kane in Denver is proof.
From the Denver Post :
Lawyers for James D. Moore, who claims he was wrongfully arrested and beaten in March 2008 by two Denver policemen, are seeking the records to prove the city tolerates a pattern of abuse by its officers.
“We are demanding the city and county of Denver comply with the law like any other defendant,” Senior U.S. District Judge John L. Kane said Friday. “I once had the marshals seize all the records in the Internal Affairs Bureau, and if I have to do this again in this case, I will.”
As we know only too well from Connick v. Thompson, the fact that one person is harmed, whether by failure to disclose constitutionally mandated information or a darn good beating, means nothing. It’s not that we don’t feel badly about it, but it’s legally irrelevant. Without proving a pattern and practice, you’re shooting blanks.
But in Moore’s case, disclosure was a drip. At best. According to the City, it was just too much of a burden to comply.
Moore’s attorney Darold Killmer complained that Assistant City Attorney Thomas Bigler only turned over a flash drive containing documents just before Friday’s hearing and that Bigler asked Killmer’s firm to pay copying fees to make CDs and DVDs of more city documents.
On the one hand, if the cops just didn’t beat up so many people, they wouldn’t have so much to disclose. On the other, the concern with the cost of disclosure, and shifting that cost to the other side so that any party trying to meet the pattern and practice burden would have to incredibly well-financed in order to move the case forward, would fail by attrition. While dealing with a document dump itself presents onerous burdens, it remains that nothing can be done until the pattern emerges, and no pattern can emerge until the City coughs up the discovery.
And Judge Kane doesn’t blink.
Kane has repeatedly ordered the city to turn over the records and said Friday that he was “on edge” about the pace. Last month, Kane threatened to fine Denver $5,000 a day if it didn’t make progress in producing the documents in another excessive-force case involving one of the same police officers Moore has accused. That case was settled out of court for $225,000.
While it’s not unheard of for a judge to flex some federal muscle to compel local government to behave like the defendant it is, rarely is there follow through. Consider Southern District of New York Judge Alvin Hellerstein, who ordered the CIA to turn over torture tapes, which the CIA instead destroyed. The ACLU sought contempt, and Judge Hellerstein punted.
In January, the judge said a contempt finding would be impractical and told the CIA to investigate itself and report how it will prevent employees from destroying information in the future. On Wednesday, he noted that the CIA adopted two new policies in August regarding document preservation to ensure that destruction of any documents outside of routine management of CIA materials will not occur without a review by lawyers to ensure they are preserved for legal proceedings or congressional oversight activity.
The judge said the CIA’s new protocols would have “a remedial and deterrent effect should a CIA official think to destroy documents.”
We can all sleep better now knowing the CIA will heal itself. But then, it’s one thing to order the CIA to do something. Imposing a cost for failure, for willfully ignoring a court order, is “impractical.”
The argument thrown back at Judge Kane, shifting the burden of producing disclosure from Denver to the plaintiff, is one that has a great deal of surface appeal to many. This is a significant cost to the public, and exposes an enormous amount of personal information if not redacted. Yet, this is the problem created by Thompson, where it’s not good enough to prove that the cops beat Moore. If a pattern and practice is necessary to make the case, then the defendant is obliged the produce the background discovery needed to prove it.
Unlike Judge Hellerstein, Judge Kane wasn’t inclined to concern himself with practicalities, but rather treated the Denver police like any other defendant.
“I do not envy you in your position to herd the cats over there (at the city) but I won’t tolerate it,” Kane said. “Maybe they can use this case to put their files in order so people can understand them.”
“Where does this payment from the other side come in?” Kane asked Bigler. “I have been here 33 years and never heard of it.”
The judge told Bigler to reproduce the records and keep track of the city’s expenses in case the city prevails in the lawsuit. At that point, city officials can seek to recover costs from Moore and his attorneys.
Kane said redacting the documents to hide names of victims and confidential informants was a waste of time because the court expects to seal them from public view.
In other words, the City of Denver can either do it or have the marshals do it for them. And if they don’t like going through the pains of having to engage in massive disclosure of police beatings, there is an easier solution. Don’t tolerate it. Don’t allow it. Don’t ignore it.
It’s good to be a senior federal judge. And it’s good to end up in Senior Judge John Kane’s courtroom.
H/T Stephanie West Allen